As US President Barack Obama makes the case for military intervention by the US in response to the Syrian government’s use of chemical weapons, Americans and many others around the world are asking what the objective should be. Is the purpose of using military force to prevent future attacks against Syrian civilians, or is the proper goal to punish Syrian President Bashar al-Assad’s regime for violating the law of nations?
So far, US Secretary of State John Kerry has invoked both purposes — degrading Syria’s chemical-weapons capacity, as well as ensuring “accountability” and “deterrence” — in advocating US military intervention. However, a mission limited to reducing the al-Assad regime’s capacity to use chemical weapons in the future is far more justifiable under international law than a mission conceived as a punitive or law enforcement action.
Preventing attacks has a clear humanitarian objective. While some argue that humanitarian intervention is never justified without approval by the UN Security Council, the UN Charter itself provides a dubious foundation for this view.
The charter does not prohibit all unilateral use of force. It prohibits only such uses of force that are aimed at a state’s “territorial integrity or political independence,” or that otherwise contravene the principles of the UN.
However, promoting and encouraging respect for human rights, including the right to life, are also among the UN’s purposes, as stated in Article One of the charter. Can al-Assad really hide behind the notion of territorial integrity or political independence to forestall an effort to stop his illegal brutality toward Syria’s citizens? Massacres of civilians conducted with chemical weapons hardly correspond to the principle of defending states’ territorial integrity and political independence.
Humanitarian intervention in Kosovo in 1999 was often described as “illegal, but legitimate.” However, because the use of force was not well-tailored to the objective of preventing genocide, it could be — and was — perceived by some as punishment of the Serbian people as a whole for supporting former Serbian leader Slobodan Milosevic’s regime. The example of Kosovo suggests the wisdom of not entangling humanitarian action in notions of deterrence or punishment.
Since the end of World War II, collective punishment has become increasingly unacceptable as a response even to grave or egregious violations of international law and this approach has been codified in a widely accepted set of principles — the so-called International Law Commission articles — concerning the responsibility of states. At the same time, non-forcible sanctions, such as economic measures, are generally compatible with current international law. So is the insistence on prosecution of war crimes at the International Criminal Court. The emergence of international criminal tribunals suggests that accountability for crimes against international law ought to be a matter addressed by independent courts, not by the unilateral exercise of military power.
However, accepting that humanitarian intervention without Security Council authorization is in principle compatible with the UN Charter gets us only so far. For purposes of both legality and legitimacy, it is vital to ensure that an unwise and ineffective intervention does not undermine the overall balance of legal rights and obligations in the charter and related human rights and humanitarian norms.